New AUMF in the Senate

by Deborah Pearlstein

Some of you will recall the series of posts a few weeks back about the new authorization for use of military force (AUMF) legislation that the House of Representatives debated and passed at the end of May. Among other things, the bill would prohibit the use of Defense Department funds to transfer Guantanamo detainees to the United States for criminal prosecution, and also seemingly extend and/or expand the President’s authority to use force against terrorist suspects worldwide. I argued here, here and here that the legislation was ill-advised and praised the Obama Administration for threatening to veto it.

This week, the Senate Armed Services Committee takes up the debate, and a colleague has passed along a briefing paper that the Administration is circulating on the Hill detailing its position. I’m still figuring out how to post a PDF, but in brief, the 7-pager explains in even clearer terms than earlier statements in response to the House bill why the Administration opposes the measure. On the idea of a new AUMF, the paper raises both sound legal and policy objections. The relevant section follows.

“The President has the authorities he needs to capture and detain supporters and members of al-Qa’ida, the Taliban, and associated or affiliated forces. Legislative efforts to update these authorities, however well intentioned they may be, would change horses midstream with no discernible benefits, and would risk both inviting waves of new litigation and sending mixed messages. Over the course of nearly a decade of policy development and litigation, the Executive Branch has used the 2001 AUMF to provide the legal basis for using necessary and appropriate force, including detention, against al-Qa’ida, the Taliban, and associated forces. The Administration has zealously and effectively pursued the enemy under this existing authority, and has successfully defended its authority to detain in the federal courts. Now is not the right time to reconfigure a legal framework which, generally speaking, has been approved by the judiciary.

The proposed language does not simply confirm the President’s existing authorities based on the 2001 AUMF. Rather, it seeks to update those authorities, and could be interpreted by the courts as an effort to override current relevant domestic and international law. For example, language that extends detention authority to all persons who had been members or supporters of an enemy force at some point in the potentially distant past before the commencement of armed conflict, or in cases where the individual has demonstrably left the group in question prior to capture, is out of line with judicial decisions as well as the laws of war. Moreover, bills that introduce new terms like ‘affiliates,’ without definition, raise unnecessary ambiguities and expose the United States to the charge that its critical national security designations are not meaningfully governed by the rule of law. Thus, the proposed language could unsettle rather than clarify the law.

Revising the AUMF also threatens to place foreign policy and national security goals at risk. By ‘updating’ the 2001 AUMF, the legislation could encourage the view – held rightly or wrongly – that the United States is seeking to expand the scope of the armed conflict, make that conflict permanent, and/or claim authorities unknown to international law. Moreover, many international observers will wonder why the United States has chosen this time to reaffirm a state of armed conflict with the Taliban, given efforts to promote transition and reconciliation in Afghanistan.”

December 9, 2016Marrakech Express--Going Slow But Still on Track[Daniel Bodansky is Foundation Professor of Law at the Center for Law and Global Affairs’ Faculty Co-Director at the Sandra Day O'Connor College of Law; an Affiliate Faculty Member, Center for Law, Science & Innovation; an Affiliate Faculty Mem...

December 2, 2016Contextualizing the Debate on First Strikes
[Charles Kels is a major in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.]
The fascinating and edifying debate between Adil Haque (see here, here, here, and here) and, respectively, Deborah Pearlstei...

November 30, 2016The Corrosive Risks of Lawless Leadership
[Geoffrey S. Cornis Professor of Law at South Texas College of Law Houston in Houston Texas. Prior to joining the South Texas College of Law Houston faculty in 2005, Professor Corn served in the U.S. Army for 21 years as an officer, retiring in the ...